Analysis: No consensus on high-speed chases
on Feb 26, 2007 at 12:01 pm
If Supreme Court Justices in February 2007 cannot agree on how reasonable or unreasonable it is for a police officer to stop a fleeing suspect’s car by ramming it from the rear at about 90 miles an hour, could a police officer in Georgia have guessed the answer in March 2001? That is a reasonable way of summing up Monday’s argument in the case of Scott v. Harris (05-1631). For nearly a full hour, the Justices talked about what they had seen on a videotape of the chase under review, about the jury’s understanding about what had happened, and about what prior Court precedents may say on the subject, but there was anything but a consensus on the constitutional conclusion to be drawn.
In a comment just before the hearing ended, attorney Philip W. Savrin of Atlanta concluded: “The discussion this morning if nothing else shows [the law was] not clearly established” in 2001 that the bumping by the police cruiser violated the Fourth Amendment. If the Court could agree with that, it presumably would lead to a ruling that Savrin’s client, Coweta County (Ga.) Deputy Sheriff Timothy Scott could escape liability for such a violation. For Scott to be eligible for what is called “qualified immunity,” the Court would have to conclude that his high-risk maneuver did not violate principles accepted at the time about the use of deadly force by police.
Throughout Sarvin’s argument, and that of two other lawyers, the Justices moved back and forth between seeming assumptions that Scott did use deadly force on the night when he ended a police chase by ramming the rear of Victor Harris’ car, causing a crash and serious injuries for Harris, to queries about whether a jury would have concluded, or not, that this tactic was justified. The Court seemed intimately familiar with, and interested in, the specific facts of that chase along the highways and city streets in Georgia.
Justice John Paul Stevens led the way in suggesting that what Scott did could not be interpreted as anything other than using too much force, while Justice Antonin Scalia spearheaded the argument that it was Harris who was the high-risk actor during a chase that Scalia described as “the scariest since the ‘French Connection.’ ”
The Justices were so absorbed with the reasonableness issue — which, of course, is the core issue on whether Scott violated the Fourth Amendment — that they did not get to the “qualified immunity” question directly. They spent a good deal of time exploring whether there was constitutional significance in the difference between the facts in this case and those in the 1985 decision in a prior deadly force case, Tennessee v. Garner in 1985, but they did not frame it in terms of what Deputy Scott was responsible for knowing about the law six years after the Garner decision.
Their interest in what Scott knew was largely devoted to what he understood the fleeing suspect Harris had done to arouse police interest (it was a speeding violation), and whether the fact that he knew it — or didn’t know it — would make any difference to the legal outcome.
Scott’s lawyer, Sarvin, seemed to provoke incredulity among some of the Justices — Stevens and David H. Souter, notably — in suggesting that there was a question of whether Scott’s maneuver, in fact, amounted to the use of deadly force. But he got help from Justice Scalia and Chief Justice John G. Roberts, Jr., in seeking to put whatever blame was assigned for the ultimate crash on Harris’ reckless driving, not on Scott’s bumping maneuver. Sarvin suggested that the deputy was faced with only two stark choices — use force to end the chase, or let Harris go. He rejected a suggestion by Justice Stevens that the police could simply have abandoned the chase. Scott, said his lawyer, was concerned that, with Harris driving as he was, there was a real likelihood that the chase “would end in tragedy” for others.
Deputy Solicitor General Gregory Garre spent his allotted ten minutes jousting with the Justices, especially Stephen G. Breyer, on what jurors should have or could have concluded about the way Harris was driving. Garre, too, sought to put most of the risk in the chase upon Harris, not Scott and the other pursuing officers.
Harris’ lawyer, Craig T. Jones of Atlanta, found himself having to defend his client against the visual images that the Justices held in their minds after having viewed a videotape of the chase. Even Justices who seemed somewhat sympathetic to Jones’ legal arguments — such as Breyer — remarked on how frightening the unfolding scene of dodging, careening, lane-changing, and accelerating looked on the tape. “Am I supposed to pretend I didn’t see that?” Breyer asked Jones. “If the court below says this did not happen, but I saw it, what am I to do?” Jones replied evenly: “Follow the law.”
The Chief Justice and Justice Scalia were Jones’ principal adversaries. Roberts argued against “creating an incentive” for anyone who sees an officer’s blue lights blinking behind them to go right on speeding, in the expectation that police would have to give up eventually. And Scalia suggested that there appeared to be no need for a constitutional disincentive for officers to use a ramming technique to terminate such a chase, because the officers have enough disincentive in the risk they know such a pursuit raises for them, too.
The Court is expected to decide the case before recessing in late June for the summer.
